Citizens United

Unauthorized Discussion of Politicians Strictly Prohibited

Office-holders want to control what people can say about them, who can say it, when they can say it, and whom they can say it with.

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David Brock appears to be the sort of apostate who abandons his faith but not his fanaticism. So the former Clinton nemesis might not find much funny about this irony: The candidate he supports for president wants Congress to have the power to ban the book Brock has just written—a defense of that very same candidate.

The book is "Killing the Messenger: The Right-Wing Plot to Derail Hillary Clinton and Hijack Your Government." It defends Clinton, whom Brock supports through two groups he founded (American Bridge and Media Matters), from the meanies at The New York Times, which Brock calls a "megaphone for conservative propaganda" (yes, really).

Clinton supports a constitutional amendment overturning Citizens United. Political reporters and others who don't know any better write about Citizens United as though it were a "campaign-finance case" that took "the reins off big-money electoral donations." This is wrong. Campaign donations were never at issue. The group that gave the case its name never tried to make a campaign donation. It made a movie. About Hillary Clinton. (To put the matter mildly, it wasn't a very flattering movie.)

Campaign-finance law at the time regulated not just donations to candidates and political parties, but also "electioneering communications" made within 30 days of a primary or 60 days of an election. This meant Citizens United couldn't advertise or air the movie as it wanted to. So it sued. During oral arguments, Justice Anthony Kennedy asked Solicitor General Malcolm Stewart whether the law also might apply to a book: "Your position is that under the Constitution… the book itself could be prohibited." Stewart answered yes, "if the book contained the functional equivalent of express advocacy"—i.e., if it used magic words like "vote for" or "vote against" or, significantly, did not use those words but still implied the same message.

Sorry, said the court. There's this obscure little provision near the back of the Constitution called the First Amendment.

Unfortunately, Congress is not the only governmental entity that seems to have overlooked that provision. Many states have done so as well.

The most recent is Missouri. On Friday, the Missouri Ethics Commission fined Ron Calzone $1,000 for failing to register as a lobbyist and submit the required paperwork. The Ethics Commission justified this on the grounds that Calzone describes himself as a "citizen lobbyist." He heads a group called Missouri First that tries to influence public policy in the Show Me state.

The bill of particulars against Calzone reports that he: "met with legislators"; "testified" before the Missouri legislature; and "appear(ed) as a witness before committees." Yikes.

Never mind that Missouri First does not lobby for clients, as actual lobbyists do. Or that Calzone does not get paid to talk to legislators. Or give them gifts or wine and dine them. In fact, he says, Missouri First doesn't even have a checking account to pay him with. As far as the Ethics Commission is concerned, he can't speak to legislators until he gets the state's permission.

And who filed the original complaint, by the way? The Missouri Society of Government Consultants – the state's association for professional lobbyists.

Ohio has pulled the same stunt. Another citizen activist, Edmund Corsi, had a website where he blogged about Buckeye State politics. He said some not-nice things about a local Republican leader, Ed Ryder. Ryder went to the Ohio Elections Commission, which told Corsi that because he spent about $40 per month on the website, his blogging was illegal unless he also registered with the state, filed reports, and subjected himself to regulation as a political action committee.

Nevada likewise tried to make a group called Citizens Outreach register as a PAC after it distributed two fliers critical of a Democratic lawmaker. The state's Democratic secretary of state claimed citizen groups could not engage in political expression without first registering with the state, reporting their expenditures, and disclosing their donors. The Nevada Supreme Court ultimately overruled him.

Delaware, meanwhile, wants to force a nonprofit group to disclose all its donors for the past four years because it distributed a voter guide on candidates' positions. The group in question is conservative. But if Delaware prevails, liberal groups that also offer voter guides, such as the Sierra Club and NARAL Pro-Choice America, could be forced to expose all their donors too.

This is precisely what Alabama did back during the civil-rights movement, when it tried to stymie the NAACP's activity by demanding its membership list. The Supreme Court ruled the demand unconstitutional.

The common thread running through these tales, and many others like them, is plain enough: Politicians and government office-holders want to control what people can say about them, who can say it, when they can say it, and whom they can say it with. They're not trying to protect democracy from corruption. They're trying to protect themselves from criticism.